Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Thursday, October 3, 2019

"100 Years Since Prohibition: Legacy for the War on Drugs"

The title of this post is the title of a talk by Harvard University Professor Lisa McGirr being hosted tomorrow by the The Ohio State University Moritz College of Law's Drug Enforcement and Policy Center. Here is the event description:

In her latest book, The War on Alcohol: Prohibition and the Rise of the American State, Lisa McGirr revises our understanding of the Prohibition years.  The 1920s were not just about gin joints and Jazz; McGirr emphasizes, instead, the serious and long-lasting legacies of the ban on alcohol.  McGirr charts how the ban built the edifice of the federal penal state, fueled the Ku Klux Klan’s power, reshaped politics, and served as a dress rehearsal for the much larger and longer-lasting war on drugs.

For those in the central Ohio area, it is not too late to register for this event at this link.

October 3, 2019 in History of Alcohol Prohibition and Temperance Movements, History of Marijuana Laws in the United States | Permalink | Comments (0)

Wednesday, May 29, 2019

"An Argument Against Regulating Cannabis Like Alcohol"

The title of this post is the title of this paper recently posted to SSRN authored by Jonathan R. Elsner, who just recently graduated from The Ohio State University Moritz College of Law. This paper is now the fifth of an on-going series of student papers supported by Drug Enforcement and Policy Center.  (The first four papers in this series are linked below.)  Here is this latest paper's abstract:

As cannabis prohibition comes to an end in the United States, federal and state governments must decide how to regulate its cultivation, distribution, and sales.  One particular option, supported by some alcohol wholesalers and distributors, is a regulatory system based on that of the alcohol industry, whereby the government mandates a distribution system consisting of three mutually exclusive tiers: manufacturers, distributors, and retailers.  This paper, however, argues against creating a regulatory framework for the nascent adult-use cannabis industry modeled after the government-mandated, three-tier distribution system established for alcohol post-Prohibition as it inherently stifles innovation and quality.

Essentially, the three-tier distribution system creates an unnatural layer of government-mandated middlemen, distributors and wholesalers, who perpetuate market inefficiencies that benefit themselves, along with large corporations, to the detriment of consumers and small-to-medium-sized businesses.  The beer industry, now dominated by two breweries offering largely undifferentiated products, provides a cautionary tale regarding the effects of the three-tier distribution system to those developing the regulatory structure for the adult-use cannabis industry.

Prior student papers in this series:

May 29, 2019 in Business laws and regulatory issues, History of Alcohol Prohibition and Temperance Movements, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Wednesday, March 27, 2019

Examining state medical marijuana programs and historic links to alcohol prohibition

A set of students in my Marijuana Law, Policy & Reform seminar are taking a deep dive into state medical marijuana programs this coming week.  Here is how they explain their planned presentation and links to some background reading:

For our presentation, we analyzed each state’s medical marijuana programs to determine ease of accessibility for patients.  We studied each state’s medical marijuana program and compared variables such as cost of registration, reciprocity, approved conditions, and many others.  Through our research, we discovered that there is wide spectrum of accessibility among the states which have legalized medical marijuana.  More specifically, we concluded that the top 5 easiest states to obtain a medical marijuana card are California, Hawaii, Illinois, Michigan, and Nevada.  Additionally, we concluded that the hardest states (among those which have legalized it) to access medical marijuana are Florida, Louisiana, Missouri, and Utah.

Next, we sought to determine if there was any correlation between the states that had easier/hardest accessibility with when those states ratified and abolished prohibition.  Our hypothesis was that the states with the laxer medical marijuana laws would be the ones that repealed prohibition sooner than those with the harsher medical marijuana laws.  Generally, we found that that states that ratified the 21st Amendment sooner seemed to have laxer medical marijuana laws and the states with the harsher laws repealed prohibition later on.  Also, side note, Oklahoma didn’t even repeal prohibition until 1959!

Background Sources

March 27, 2019 in Assembled readings on specific topics, History of Alcohol Prohibition and Temperance Movements, History of Marijuana Laws in the United States, Medical Marijuana State Laws and Reforms | Permalink | Comments (0)

Sunday, March 3, 2019

Not too late to register for "The Prohibition Era and Policing" at Ohio State on March 4

As detailed at this link (where folks can register), the Drug Enforcement & Policy Center at The Ohio State University Moritz College of Law has a very exciting event scheduled for tomorrow afternoon (Monday, March 4, 2019).  The event is titled "The Prohibition Era and Policing"  and here are the basics:

The legal precedents created during Prohibition have lingered, leaving search-and-seizure law much better defined than limits on police use of force, interrogation practices, or eyewitness identification protocols.  Please join us as Professor Wesley M. Oliver discusses his latest book, The Prohibition Era and Policing: A Legacy of Misregulation, followed by a discussion with:

  • Honorable Maureen O'Connor, Chief Justice of the State of Ohio
  • Honorable Jeffrey S. Sutton, United States Court of Appeals for the Sixth Circuit
  • Dr. Andrea Headley, John Glenn College of Public Affairs, The Ohio State University

Folks are welcome to attend (and to bring others) even without having registered, it is helpful for planning purposes for folks to register here if they know they are planning to attend.

March 3, 2019 in Criminal justice developments and reforms, History of Alcohol Prohibition and Temperance Movements | Permalink | Comments (0)

Sunday, January 20, 2019

"If Weed Is Medicine, So Is Budweiser: Legalize marijuana, but don’t pretend it’s therapeutic."

Bach-peter_1The title of this post is the headline of this provocative Wall Street Journal commentary authored by Peter Bach, "a pulmonary physician at Memorial Sloan Kettering Cancer Center in New York [who] directs the Center for Health Policy and Outcomes."  Here are excerpts:

Ten states and the District of Columbia have legalized recreational marijuana use, and another eight look likely to do so in 2019.  I favor the move but am troubled by the gateway to it: All these jurisdictions first passed laws permitting the use of “medical” marijuana.  We should set the record straight, lest young people (and old ones) think marijuana is good for you because it is wrongly labeled a medication.

Actual medicines have research behind them, enumerating their benefits, characterizing their harms, and ensuring the former supersedes the latter.  Marijuana doesn’t.  It’s a toxin, not a medicine.  It impairs judgment and driving ability.  It increases the risk of psychosis and schizophrenia.  Smoking it damages the respiratory tract.  A 2017 report from the National Academy of Medicine called the evidence for these harms “substantial.”

Claims that marijuana relieves pain may be true.  But the clinical studies that have been done compare it with a placebo, not even a pain reliever like ibuprofen.  That’s not the type of rigorous evaluation we pursue for medications.  What’s more, every intoxicant would pass that sort of test because you don’t experience pain as acutely when you are high.  If weed is a pain reliever, so is Budweiser.

Some advocates say marijuana is better than opiates for pain.  Yet while opiates have risks, there are no studies comparing them to marijuana, and untested claims in medicine don’t get the benefit of the doubt.  Testing such a hypothesis often disproves it.

Decades ago, several studies suggested that marijuana might relieve nausea in chemotherapy patients.  But again most compared it with a placebo, while a few compared it with older nausea treatments not used today. None were very convincing. More important, no study has compared marijuana to today’s Neurokinin-1 antagonists. While such treatments are sometimes ineffective, that shortcoming doesn’t impart efficacy on marijuana either.

In writing medical-marijuana laws, state lawmakers and initiative authors have gone well beyond pain and nausea control, lauding the plant as an effective treatment for a long list of conditions, including hepatitis, Alzheimer’s and Parkinson’s.  Beyond the lack of data, what these conditions have in common isn’t biology, but modern medicine’s failure to treat them satisfactorily.  Heartbreaking as that is, marijuana isn’t the answer....

Marijuana belongs in the same category as alcohol and tobacco — harmful products that adults can choose to enjoy....  Decades passed before we took on smoking and drinking with education, labeling and other forms of regulation.  But it worked, and deaths from lung cancer, heart disease and alcohol-associated accidents are in sharp decline. We need this same approach with marijuana.  Acknowledging that it is not a medicine is a necessary first step.

I think it valuable and important to highlight ways in which many of the forms of the plant cannabis, at least right now, is not comparable to the kinds of medicines we access at a drug store.  But it is also important to highlight ways in which medical marijuana laws do not treat marijuana as comparable to other medicines. For starters, public and private health insurance systems general do not help cover the cost of marijuana used medicinally and there are all sorts of distinctive limits on the whos and hows of medical marijuana access.  In many ways, all modern medical marijuana laws are still just elaborate variations on the original law created by California in 1996, which simply created a limited exception to marijuana prohibition for those eager to try marijuana for various therapeutic purposes. Had marijuana never been criminalized, there would have been no need to seek exceptions from prohibition for medical uses (and, it bear recalling, there was much discussion and special laws around alcohol access for medical use during the Prohibition era).

January 20, 2019 in History of Alcohol Prohibition and Temperance Movements, History of Marijuana Laws in the United States, Medical community perspectives, Medical Marijuana Commentary and Debate, Who decides | Permalink | Comments (2)

Tuesday, January 15, 2019

"Life, Liberty, (and the Pursuit of Happiness): Medical Marijuana Regulation in Historical Context"

The title of this post is the title of this great new book chapter authored by Lewis Grossman now available via SSRN.  Here is its abstract:

The struggle for access to medical marijuana differs from most other battles for therapeutic freedom in American history because marijuana also has a popular, though controversial, nontherapeutic use — delivery of a recreational high.  After considering struggles over the medical use of alcohol during prohibition as a precedent, this chapter relates the history of medical marijuana use and regulation in the United States.  The bulk of the chapter focuses on the medical marijuana movement from the 1970s to present.  This campaign has been one of the prime examples of a successful extrajudicial social movement for freedom of therapeutic choice.  With the exception of a single promising decision in 1975, courts have uniformly rejected arguments for medical marijuana access.  But the 1996 passage of Proposition 215 in California triggered a tremendous wave of state measures legalizing medical cannabis, as well as a dramatic change in American attitudes about the issue. 

The chapter recounts this history in light of the special legal, political, and rhetorical challenges medical cannabis advocates have faced.  First, many officials have opposed the legalization of medical marijuana, regardless of whether it offers therapeutic benefits, because of the public health harms and moral degradation they associate with the use of pot.  Second, marijuana’s designation as a Schedule I substance under the Controlled Substances Act of 1970, and the DEA’s rejection of multiple citizen petitions to reclassify it, has placed extremely high obstacles in the way of researchers interested in scientifically assessing marijuana’s therapeutic efficacy.  Third, federal government policies have lagged behind public preference and state law.  Finally, medical marijuana supporters have had to negotiate an invaluable but fraught relationship with advocates for comprehensive marijuana legalization.  The perspectives and goals of these two groups have overlapped and conflicted in fascinating and unexpected ways.

January 15, 2019 in History of Alcohol Prohibition and Temperance Movements, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms | Permalink | Comments (1)

Thursday, July 5, 2018

"Why Alcohol Is Still the Most Dangerous Drug"

27_Alcohol_Start_770The title of this post is the headline of this lengthy new article in Governing magazine.  Interestingly, the article does not once mention marijuana, but it is still a sobering read against the backdrop of the often-stated refrain of marijuana reformers that they want marijuana regulated like alcohol.  I recommend the entire piece, and here are excerpts from the start of the lengthy piece:

Most Americans have a general sense that drunken driving isn’t as bad a problem as it was a generation ago. But few realize how much those numbers changed in a relatively short time.  When the federal government started counting alcohol-impaired traffic deaths in 1982, there were more than 21,000 a year. By 2011, the death toll was down by 53 percent. States had raised the legal drinking age to 21 and adopted a common rule that a blood alcohol concentration (BAC) of .08 meant “too drunk to drive.”  Many states also mandated the installation of interlock devices to prevent those with a history of drunken driving from turning on their ignition unless they were sober. Those laws, coupled with education and prevention campaigns, helped reduce drunk driving deaths to fewer than 10,000 in 2011.

But recently the trend has stalled. The total number of alcohol-impaired traffic fatalities actually rose in both 2015 and 2016. “Drunk driving has been around since the automobile was invented and it’s still the biggest killer on the highway,” says J.T. Griffin, the chief government affairs officer for Mothers Against Drunk Driving (MADD). Indeed, alcohol causes more traffic deaths per year than either speeding or driving without a seatbelt....

Up to now, no state has imposed a limit of .05, but that’s about to change. Utah will go to .05 in December. In the past year, Delaware, Hawaii, New York and Washington state have also considered legislation to lower the limit. “It will change the conversation from, ‘If you have been drinking too much, you shouldn’t drive,’ to, ‘If you’ve been drinking, you shouldn’t drive,’” says Utah Rep. Norm Thurston, who sponsored the .05 legislation. The new message -- that driving shouldn’t occur after even moderate drinking -- “is probably what it should have been all along,” he says.

American alcohol policy is in a curious state of flux. On one hand, states and localities continue to tax alcoholic beverages not only to raise revenue but also to educate the public about the risks associated with drinking. On the other hand, states are passing laws that make alcohol easier to purchase by permitting sales on Sundays, in movie theaters and at grocery outlets. In December, Congress cut federal alcohol excise taxes to the tune of $4.2 billion over two years. The reduction is expected to bring down prices and increase consumption.

The national conversation around addiction has been dominated in recent years by opioids. Certainly, the rapid rise in opioid overdoses, which claimed 42,000 lives in 2016 alone, is a pressing issue for states across the country.  The White House has declared a national public health emergency over the epidemic, and governments everywhere are marshalling efforts to combat the crisis.

But the fact is that alcohol kills roughly 88,000 Americans each year, more than double the number of opioid deaths.  Almost half of alcohol fatalities come from chronic health problems attributed to excessive alcohol consumption, such as liver cirrhosis, breast cancer and heart disease.  Those alcohol-induced deaths are on the rise. Excluding certain acute causes, such as homicides and traffic fatalities, the rate of alcohol-induced deaths increased by about 47 percent between 1999 and 2015.

Public health specialists say it’s time for a broader national dialogue about substance misuse, one that includes alcohol.  “There continues to be a [reluctance to accept that] alcohol is an addictive substance because it’s legal, because it’s widely used, because people believe that unless it’s a drunk driving accident you don’t really die from it,” says Phyllis Randall, chair of the Loudoun County, Va., Board of Supervisors and a former mental health therapist who worked for 15 years treating offenders with substance abuse problems in an adult detention center.

July 5, 2018 in History of Alcohol Prohibition and Temperance Movements | Permalink | Comments (0)

Monday, June 11, 2018

New York City Bar Association issues report supporting proposed New York marijuana legalization law

Logo-nyc-blueThe New York City Bar Association's Committee on Drugs and the Law released this notable 11-page report today (also available here), which starts and ends this way:

The New York City Bar Association’s Committee on Drugs and the Law (“the Committee”) respectfully submits this report examining and approving the legalization, regulation, and taxation of marijuana for adult non-medical use in New York State and providing support for A.3506-B/S.3040-B (“the Legislation”), which would create a system for the production, distribution, and adult non-medical use of marijuana.  We also recommend, if feasible, minor revisions to the Legislation, as noted herein.  The Committee also takes this opportunity to express its support for the policy of ending criminalization of marijuana, and for taxing and responsible regulation of marijuana...

The Committee on Drugs and the Law supports this Legislation to create a legal, regulated market for adult non–medical use of marijuana in New York State.  New York was the first state to turn away from alcohol Prohibition in 1923, and the Committee hopes the state will show similar leadership on this analogous issue, whether through this Legislation or another vehicle.  Marijuana prohibition is a costly and ineffective policy that has not succeeded in eliminating marijuana use. The failed policy has devastated families and communities, eroded respect for the law, and strained police-citizen relations.  Accordingly, the Committee applauds this Legislation and urges its adoption. Further, regardless of the vehicle, the Committee supports state and federal legislative and policy changes that reduce or eliminate criminalization of marijuana and that permit, tax, and regulate the production, distribution, and adult use of marijuana.

I think it somewhat amusing (and I suppose a bit depressing) that the conclusion of this document notes that New York "turn[ed] away from alcohol Prohibition" only three years after federal Prohibition became effective in January 1920. We are now 48 years since the federal Controlled Substances Act of 1970 gave marijuana the prohibition treatment and New York has still not yet gotten around to turning away.

June 11, 2018 in History of Alcohol Prohibition and Temperance Movements, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Monday, June 4, 2018

According to Gallup, "Most in U.S. Say Consuming Alcohol, Marijuana Morally OK"

Pan9mim7h0gglsk6cqsz1wThis news release reports on an interesting new Gallup survey concerning American moral perspectives. Here are excerpts:

Large majorities of Americans believe that using substances like alcohol and marijuana are morally permissible. Specifically, 78% say drinking alcohol is morally acceptable and 65% say smoking marijuana is.

Alcohol and marijuana rank near the top of the list of practices Americans consider morally acceptable. Only birth control, at 91%, gets a higher percentage sanctioning it than drinking alcohol does. Smoking marijuana trails birth control, drinking alcohol and divorce (76%), but is on par with widely accepted acts including gambling, sex between an unmarried man and woman, gay or lesbian relations, stem cell research, and having a baby outside of marriage.

Americans are least likely to regard married men and women having an affair, cloning humans, polygamy and suicide as morally OK. Their opinions are most closely divided on morality of abortion -- 43% believe it is morally acceptable and 48% believe it is not.

Gallup's trends on many of these items date back to 2001. On most, Americans have adopted more permissive views over time. Presumably, this also applies to the new item on smoking marijuana, given the surge over the past two decades in the percentage who say that smoking the drug should be legal. In fact, the 64% who last fall said marijuana should be legal nearly matches the 65% who say smoking it is morally acceptable.

Majorities of key subgroups of Americans regard both drinking alcohol and smoking marijuana as morally acceptable, but highly religious Americans, as measured by the frequency with which they attend church, are less likely to do so. Whereas 88% of those who seldom or never attend religious services find drinking alcohol to be morally acceptable, 60% of those who attend weekly hold that view. And while three-quarters of non-attenders say smoking marijuana is OK, less than half of regular churchgoers, 41%, agree.

Other subgroup differences, including those by gender, age, race and political ideology, appear to reflect differences in church attendance among those groups. For example, nonwhites, women, older Americans and conservatives are more likely to attend church but less likely to say smoking marijuana and drinking alcohol are OK.

In nearly every key subgroup, a greater percentage say drinking alcohol is morally acceptable than says the same about smoking marijuana. Young adults, ideological liberals and moderates are notable exceptions, as these three groups are about equally likely to find the two practices morally acceptable. In contrast to liberals and moderates, ideological conservatives are far more likely to view drinking alcohol (75%) than smoking marijuana (47%) as acceptable moral behavior.

Most Americans do not object on moral grounds to people drinking alcohol or smoking marijuana. Of the two, they are more likely to see drinking alcohol as an acceptable behavior, perhaps because it is legal in all states while smoking marijuana is not. Some states have recently legalized marijuana and many others are considering doing so, perhaps removing some of the stigma associated with the drug. But with roughly two-thirds of the public saying marijuana use is morally acceptable, it seems there will not be sufficient opposition to thwart attempts to make it legal.

June 4, 2018 in History of Alcohol Prohibition and Temperance Movements, History of Marijuana Laws in the United States, Polling data and results | Permalink | Comments (0)

Tuesday, February 13, 2018

"How will cannabis legalization affect alcohol consumption?"

UntitledThe question in the title of this post is the headline of this notable new commentary authored by Beau Kilmer and Rosanna Smart.  Like many thoughtful commentaries in this arena, the authored highlight that a seemingly simple question does not have a simple answer.  Here are excerpts:

How will legalization affect alcohol consumption?  Will drinking go down because people substitute cannabis for alcohol, or will drinking go up because cannabis and alcohol complement each other?  These questions have important implications for the health consequences of legalization, and for tax revenues.  Unfortunately, we don’t have the answers, yet.

A 2015 RAND Corporation study about cannabis legalization for the state of Vermont concluded that the evidence was mixed about whether cannabis and alcohol were substitutes or complemented each other.  A 2016 University of Washington literature review about changing cannabis polices and alcohol use concluded the relationship was complex.

Much research has relied on evidence of how laws that increase access to medical cannabis affect alcohol use.  The findings are mixed, possibly because the studies examine different age groups, measures of alcohol consumption and time periods.  The alcohol-cannabis relationship may differ across population subgroups — teens may treat these substances differently than adults. Also, some studies consider only effects on whether people drink, but not effects on how often or how much they drink.

Different studies also examine different time periods, and the laws have been changing over time.  Early state laws (such as the medical cannabis legislation California passed in 1996) tend to allow broader qualifying patient conditions, legal home cultivation and less oversight of dispensaries.  Differences in policies may lead to different effects on cannabis use, and possibly alcohol use. And the laws’ impact may evolve over time as the market expands or as federal enforcement shifts.

A recent working paper out of the University of Connecticut and Georgia State University has received a fair bit of attention as the latest in this series of attempts to shed light on the issue of whether alcohol and cannabis are substitutes or complements based on evidence from medical cannabis laws.  The authors examined changes in alcohol sales at grocery and convenience stores and other outlets.  They found that cannabis and alcohol are strong substitutes, with medical cannabis implementation being associated with a 15 percent reduction in monthly alcohol sales.

That is a surprisingly large effect, equivalent to what we would predict if the price of alcohol increased on the order of 30 percent.  The effect seems especially large considering that during the study period of 2006 to 2015, the newer state medical cannabis programs that drive the main result were more restrictive and had low participation rates, typically involving less than 1 percent of the population.  Of course, these medical laws could have effects that reach beyond the registered patient population if they made it easier and cheaper for non-patients to access cannabis, or if the laws caused the public to change its attitudes about cannabis and alcohol use more broadly.  Much more needs to be learned about what’s driving the results in this working paper.

Even if a consensus developed about the effect of medical cannabis laws on alcohol use, it would be unwise to simply assume that the same relationship applies to legalizing cannabis sales and advertising for recreational purposes....

These questions about legalization and alcohol consumption will not be resolved anytime soon.  In the meantime, California’s policymakers are making decisions about whether to license stores and lounges, and if so, where and how many.  They would be wise to build flexibility into their regulatory systems and not lock into decisions they may regret as they gain more information.

February 13, 2018 in History of Alcohol Prohibition and Temperance Movements, History of Marijuana Laws in the United States, Medical Marijuana Data and Research, Recreational Marijuana Data and Research | Permalink | Comments (2)

Wednesday, November 15, 2017

Examining "The Temperance Movement and Its Relevance on Today’s Marijuana Policy"

My students know that I strongly believe legal and social histories are critical topics for anyone and everyone interested in any aspect of criminal justice reform. (I always find astute the William Faulkner quote: "The past is never dead. It's not even past.") Consequently, I am especially excited that one of my students in my Marijuana Law, Policy & Reform seminar is making his presentations this week on "The Temperance Movement and Its Relevance on Today’s Marijuana Policy." Here are some of the major sources that the student working on this topic has provided for class consideration:

Daniel Okrent, Last Call: The Rise and Fall of Prohibition

Jack S. Blocker, Did Prohibition Really Work? Alcohol Prohibition as a Public Health Innovation

Harry G. Levine & Craig Reinarman, Lessons from Alcohol Policy for Drug Policy

David F. Musto, The American Experience with Stimulants and Opiates (previous class material that everyone already read)

November 15, 2017 in Assembled readings on specific topics, History of Alcohol Prohibition and Temperance Movements, History of Marijuana Laws in the United States | Permalink | Comments (0)

Monday, November 13, 2017

"Helping Settle the Marijuana and Alcohol Debate: Evidence from Scanner Data"

The title of this post is the title of this intriguing new empirical article authored by Michele Baggio, Alberto Chong and Sungoh Kwon now available via SSRN. Here is the abstract (with the key finding emphasized):

We use data on purchases of alcoholic beverages in grocery, convenience, drug, or mass distribution stores in US counties for 2006-2015 to study the link between medical marijuana laws and alcohol consumption and focus on settling the debate between the substitutability or complementarity between marijuana and alcohol. To do this we exploit the differences in the timing of the of marijuana laws among states and find that these two substances are substitutes. Counties located in MML states reduced monthly alcohol sales by 15 percent. Our findings are robust to border counties analysis, a placebo effective dates for MMLs in the treated states, and falsification tests using sales of pens and pencils.

November 13, 2017 in History of Alcohol Prohibition and Temperance Movements, History of Marijuana Laws in the United States, Medical Marijuana Data and Research, Medical Marijuana State Laws and Reforms | Permalink | Comments (0)

Friday, September 23, 2016

Are all opponents of marijuana reform ultimately suspicious and critical of capitalism and free markets?

The question in the title of this post came to my mind as I started heading this morning the great book I first flagged here at my sentencing blog: Harvard historian Lisa McGirr's The War on Alcohol: Prohibition and the Rise of the American State.  The start of the book highlights how many early alcohol Prohibitionist were much more troubled by and focused on the "liquor trade" and "liquor trafficking" rather than just individuals drinking.  

I see, of course, a huge parallel in this sense to the leading modern anti-marijuana-reform group, Smart Approaches to Marijuana (SAM), which repeatedly claims that its advocacy is not driven by support for blanket marijuana prohibition enforced by criminal sanctions, but rather is just concerned about the creation of a legal "Big Marijuana" industry.  As SAM explains here at its website

People often ask us what our biggest fear of legalization is.  The answer is simple: Big Pot....

The tobacco and alcohol industries follow similar patterns while hawking their legal, addictive substances. And we know how that story ends: money-hungry industries, targeting the vulnerable, will stop at nothing to increase addiction and profit. Why on earth would we want to repeat that debacle with cannabis?

I bring this up because I have long said and long believed that my affinity for and support of marijuana reform is part of a "conservative" commitment not only to personal liberty but also to capitalism and free markets. Though I fully understand and respect concerns about the long-term political and practical impact of "Big Marijuana" (and/or Big Pharma and/or Big Oil and/or Big Google), I still firmly believe the long-term political and practical impact of Big Government is and should be more worrisome at least to those who are fans of capitalism and free markets.  Ergo, I think it is fair to at least suggest that all opponents of marijuana reform (and even a good number of marijuana reform supporters) are likely fundamentally suspicious and critical of capitalism and free markets.

September 23, 2016 in History of Alcohol Prohibition and Temperance Movements, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Political perspective on reforms, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Saturday, August 20, 2016

"Is Big Marijuana Inevitable?"

The question in the title of this post is the headline of this notable New Republic piece authored by lawprof Ryan Stoa, which answers the questionwith a "no" and gets started this way (with links from the original):

In November, voters in as many as 12 states will see a marijuana legalization initiative on their ballots. Marijuana is already legal for recreational use in Alaska, Colorado, Oregon, Washington and Washington, D.C. Another 25 states have legalized medical marijuana. The era of marijuana prohibition is rapidly coming to a close.

Unfortunately, lawmakers lack easy answers to tough questions facing the marijuana industry.  Legalization presents challenges on a number of fronts, including distribution, taxation, consumption, security and public health.

In a recent article, I argue that the agricultural sector of the marijuana industry also presents a number of challenges.  One paramount question looms over the rest: Will marijuana agriculture become consolidated, with “Big Marijuana” companies producing vast quantities of indistinct marijuana?  Or, will small-scale farmers thrive by producing unique and local marijuana strains?

My research shows that Big Marijuana is not inevitable.  On the contrary, a local, sustainable, small-scale farming future is entirely within reach.

 

August 20, 2016 in Business laws and regulatory issues, History of Alcohol Prohibition and Temperance Movements, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (1)

Sunday, June 19, 2016

Two great new Brookings papers on the varied forces really shaping marijuana reform

ImagesRegular readers perhaps growing bored of hearing me sing the praises of the work being done by the The Brookings Institution on the legal, political and social realities surrounding modern marijuana reform.   But two great new Brookings papers (along with this live event about the papers) ensures that I will be continuing to talk about the must-read materials the folks there are continuing to produce.   Here are links to the two papers and the summaries provided by Brookings:

Worry about bad marijuana — not Big Marijuana by John Hudak and Jonathan Rauch

Many critics and proponents of marijuana legalization alike have voiced concerns about the potential emergence of Big Marijuana, a corporate lobby akin to Big Tobacco that recklessly pursues profits and wields sufficient clout to shape regulation to its liking.

Although marijuana remains illegal under federal law, medical and/or recreational marijuana is now legal in more than two dozen states. As the federal government has largely tolerated state legalization, corporate capital and muscle have begun moving in on these new state markets. Such commercialization raises a new set of concerns about how industry dynamics may impact consumer behavior and potentially incur social costs.

In their new paper, “Worry about bad marijuana—not Big Marijuana,” John Hudak and Jonathan Rauch argue against alarmism. In analyzing the likely implications of the corporatization of marijuana, they conclude the following:

The marijuana industry will remain a diverse one even as large corporations emerge. The Big Marijuana rubric is more misleading than helpful as a guide to policy because it oversimplifies and stereotypes what is in reality a continuum of business scales and structures.

The marijuana industry is very unlikely to transform into something that looks like Big Tobacco during its notorious heyday. It is more likely that a commercial and regulatory model would look like the one governing alcohol, which is regulated primarily at the state level, combines mandatory with voluntary measures to police industry conduct, does a credible job of preventing antisocial and abusive commercial behavior, and has proven stable over time and broadly acceptable to the public and the industry.

Intelligently regulated and managed, Big Marijuana can be part of the solution. Corporatization, though not without its hazards, has considerable upsides. It brings advantages in terms of public accountability and regulatory compliance, product safety and reliability, market stability, and business professionalism.

Policy should concern itself with harmful practices, not with industry structure, and it should begin with a presumption of neutrality on issues of corporate size and market structure. Attempts to block corporatization are likely to backfire or fail. For policymakers, the concern should be bad marijuana, not big marijuana.

Bootleggers, Baptists, bureaucrats, and bongs: How special interests will shape marijuana legalization by Jonathan Rauch and Philip Wallach

Where there are markets, regulations, and money, special interests and self-serving behavior will not be far away. So argue Philip Wallach and Jonathan Rauch in this new paper that examines how special interests are likely to shape marijuana legalization and regulation in the United States.

Why did legalization of marijuana break through in the face of what had long been overwhelming interest-group resistance? In a post-disruption world, how might key social and bureaucratic actors reorganize and reassert themselves? As legalization ushers in a “new normal” of marijuana-related regulation and lobbying, what kinds of pitfalls and opportunities lie ahead? In this paper, Wallach and Rauch address those questions through the prism of what political economists often call the theory of public choice—the study of how interest groups and bureaucratic incentives influence policy outcomes. Their conclusions include:

For many years, the marijuana-policy debate was dominated by an “iron triangle” of anti-legalization interests: moralists and public-health advocates who believe marijuana use is wrong or harmful; commercial and gray-market interests with stakes in drug treatment and medical marijuana; and law-enforcement and quasi-governmental entities whose budgets and missions are sustained by the war on drugs. Those interests’ combined firepower stunted change even as public support for marijuana prohibition softened.

To make possible the wholesale disruption that has happened with marijuana legalization, public opinion change was necessary, but it was not sufficient. Also required was the disruption of the iron triangle. That was accomplished in the late 2000s through a shrewdly crafted campaign of “asymmetric warfare” that aimed money and argumentation at the incumbent coalition’s weakest points. In particular, reformers shifted the public’s focus from harms of marijuana use to harms of marijuana criminalization.

The rise of commercial marijuana interests and a potentially controversial “marijuana lobby” may impede legalization’s momentum as its opponents change the subject once again, from harms of criminalization to harms of corporate predation.

The present disrupted regulatory environment is unlikely to last. Old prohibitionist interests are discombobulated and new commercial-marijuana interests are still getting organized, giving legalizing states a degree of regulatory freedom which is exceptional but probably not durable. Over time, multiple interests will coalesce and colonize the regulatory process.

Despite widely touted concern that one or more disproportionately powerful players will dominate the regulatory system, regulatory incoherence should be a greater concern than regulatory capture. As policymakers increasingly need to navigate complex and conflicting interest-group politics, the result is at least as likely to be overregulation and misregulation as it is to be systematic underregulation.

June 19, 2016 in Business laws and regulatory issues, History of Alcohol Prohibition and Temperance Movements, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Political perspective on reforms, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Tuesday, April 5, 2016

Looking closely at the history of marijuana propaganda

As students in my semester-long OSU Moritz College of Law seminar on marijuana laws and reform continue assembling readings on particular topics in preparation for an in-class presentation/discussion, this week we have a student taking a deep dive into marijuana propaganda past and present.  Here are links to assembled resources and his summaries:

"Reefer Madness: Mid-Century Anti-Marijuana Propaganda In Movies And Books"

This article provides a good timeline of early Marijuana propaganda and identifies some of the common themes underlying public marijuana education through the 1950s.  It also discusses the themes of racism underlying early marijuana advertising.

"From the Devil’s Lettuce to the Dropout Drug: The Evolution of Reefer Madness Propaganda"

Identifying the changing themes of government propaganda over the years.  Beginning with violent crime, shifting to laziness, health concerns, gateway drugs, and eventually focusing on youth access to marijuana in the modern day.  This article showcases the ways that government sponsored marijuana education has changed over the years as public perception of the drug also changes.

"In Debate Over Legalizing Marijuana, Disagreement Over Drug’s Dangers"

A Pew Research study showcasing attitudes towards marijuana based on age. A correlation can be drawn between reasons that a certain age group opposes legalization and the messages presented during their time.  The Silent Generation who was coming of age during Reefer Madness opposes legalization because of the perceived violent nature of marijuana, while members of Gen X oppose legalization because of the perceived health risks presented by marijuana.  A relation to their exposure to the “Your Brain on Drugs” campaign during the ‘80s.

"Ten Nights in a Bar Room vs. Reefer Madness"

Finally, a video I edited to try and capture the essential themes and messages presented in both Reefer Madness and Ten Nights in a Bar Room.  The two films have been edited down to try and present only the biggest anti-marijuana/alcohol themes in the movies.  If fellow classmates would like a brief introduction to what marijuana education looked like in the ‘30s I would hope this properly captures and showcases the political climate at the time.

April 5, 2016 in Assembled readings on specific topics, History of Alcohol Prohibition and Temperance Movements, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Tuesday, September 1, 2015

Latest survey data shows marijuana use up, while other drug and alcohol use down, on college campuses

This news release from the University of Michigan, which reports on new data from its Monitoring the Future study, provides some evidence to support the notion that marijuana reform movements and other social factor may be lead college students to use more marijuana while also using less other illicit and licit drugs.  Here is some of the interesting new data via the press release:

Daily marijuana use among the nation's college students is on the rise, surpassing daily cigarette smoking for the first time in 2014. A series of national surveys of U.S. college students, as part of the University of Michigan's Monitoring the Future study, shows that marijuana use has been growing slowly on the nation's campuses since 2006.

Daily or near-daily marijuana use was reported by 5.9 percent of college students in 2014 — the highest rate since 1980, the first year that complete college data were available in the study. This rate of use is up from 3.5 percent in 2007. In other words, one in every 17 college students is smoking marijuana on a daily or near-daily basis, defined as use on 20 or more occasions in the prior 30 days....

In sum, quite a number of drugs have been fading in popularity on U.S. college campuses in recent years, and a similar pattern is found among youth who do not attend college. Two of the newer drugs, synthetic marijuana and salvia, have shown steep declines in use. Other drugs are showing more gradual declines, including narcotic drugs other than heroin, sedatives and tranquilizers — all used non-medically — as well as inhalants and hallucinogens....

While 63 percent of college students in 2014 said that they have had an alcoholic beverage at least once in the prior 30 days, that figure is down a bit from 67 percent in 2000 and down considerably from 82 percent in 1981. The proportion of the nation's college students saying they have been drunk in the past 30 days was 43 percent in 2014, down some from 48 percent in 2006.

Occasions of heavy or binge drinking — here defined as having five or more drinks in a row on at least one occasion in the prior two weeks — have consistently had a higher prevalence among college students than among their fellow high school classmates who are not in college.

Still, between 1980 and 2014, college students' rates of such drinking declined 9 percentage points from 44 percent to 35 percent, while their non-college peers declined 12 percentage points from 41 percent to 29 percent, and high school seniors' rates declined 22 percentage points from 41 percent to 19 percent....

Cigarette smoking continued to decline among the nation's college students in 2014, when 13 percent said they had smoked one or more cigarettes in the prior 30 days, down from 14 percent in 2013 and from the recent high of 31 percent in 1999—a decline of more than half. As for daily smoking, only 5 percent indicated smoking at that level, compared with 19 percent in 1999 — a drop of nearly three fourths in the number of college students smoking daily.

September 1, 2015 in History of Alcohol Prohibition and Temperance Movements, Medical Marijuana Data and Research, Recreational Marijuana Data and Research | Permalink | Comments (0)

Thursday, May 14, 2015

"Marijuana Prohibition Is Unscientific, Unconstitutional, And Unjust"

The title of this post is the headline of this new Jacob Sullum commentary at Forbes.  Here are excerpts:

[N]o one should pretend that marijuana prohibition was carefully considered or that it was driven by science, as opposed to ignorance and blind prejudice.  It is hard to rationally explain why Congress, less than four years after Americans had emphatically rejected alcohol prohibition, thought it was a good idea to ban a recreational intoxicant that is considerably less dangerous.

It is relatively easy, for example, to die from acute alcohol poisoning, since the ratio of the lethal dose to the dose that gives you a nice buzz is about 10 to 1.  According to the U.S. Centers for Disease Control and Prevention (CDC), about 2,200 Americans die from alcohol overdoses each year.  By contrast, there has never been a documented human death from a marijuana overdose.  Based on extrapolations from animal studies, the ratio of the drug’s lethal dose to its effective dose is something like 40,000 to 1.

There is also a big difference between marijuana and alcohol when it comes to the long-term effects of excessive consumption.  Alcoholics suffer gross organ damage of a kind that is not seen even in the heaviest pot smokers, affecting the liver, brain, pancreas, kidneys, and stomach.  The CDC attributes more than 38,000 deaths a year to three dozen chronic conditions caused or aggravated by alcohol abuse.

Another 12,500 alcohol-related deaths in the CDC’s tally occur in traffic accidents, and marijuana also has an advantage on that score.  Although laboratory studies indicate that marijuana can impair driving ability, its effects are not nearly as dramatic as alcohol’s.  In fact, marijuana’s impact on traffic safety is so subtle that it is difficult to measure in the real world....

Even if marijuana prohibition were consistent with science and the Constitution, it would be inconsistent with basic principles of morality.  It is patently unfair to treat marijuana merchants like criminals while treating liquor dealers like legitimate businessmen, especially in light of the two drugs’ relative hazards.  It is equally perverse to arrest cannabis consumers while leaving drinkers unmolested.

Peaceful activities such as growing a plant or selling its produce cannot justify the violence that is required to enforce prohibition.  In the name of stopping people from getting high, police officers routinely commit acts that would be universally recognized as assault, burglary, theft, kidnapping, and even murder were it not for laws that draw arbitrary lines between psychoactive substances.

May 14, 2015 in History of Alcohol Prohibition and Temperance Movements, History of Marijuana Laws in the United States | Permalink | Comments (1)

Friday, May 8, 2015

"Policy Strategies to Reduce Youth Recreational Marijuana Use"

The title of this post is the title of this short paper authored by researchers from Johns Hopkins University and published in the journal Pediatrics. Here is a excerpt that highlights the paper's coverage:

Legalization of marijuana for recreational use among adults could significantly increase access to the drug among youth and is a growing concern for pediatric health in the United States.  In a January 2015 policy statement, the American Academy of Pediatrics (AAP) reaffirmed its opposition to legalization of recreational marijuana because of potential harms to youth.  Alongside efforts to promote prevention and treatment, it advocated for decriminalization (reducing criminal penalties for marijuana possession) to reduce adverse effects of felony convictions on youth, especially minorities....

Experiences with tobacco and alcohol provide context for building a strong regulatory environment and offer 4 priorities for recreational marijuana regulation (summarized in Table 1) that could help advance the AAP’s goals of protecting child and adolescent health.

May 8, 2015 in History of Alcohol Prohibition and Temperance Movements, History of Marijuana Laws in the United States, Medical community perspectives | Permalink | Comments (0)

Monday, February 23, 2015

What might be the modern public health story if marijuana had been kept legal and tobacco cigarettes widely banned?

Students in my marijuana seminar know that I think there is much to think about and learn from the history of (alcohol) Prohibition in the United States and the history of marijuana prohibition.   But I have now learned from this fascinating new Jacob Sullum piece that there was an interesting US history surrounding cigarette prohibition that also should be a lesson for modern marijuana advocates.   The lengthy Sullum piece, which is headlined "Today's Pothead Is Yesterday's Cigarette Fiend," should be read in full, but these passages are what engendered the question in the title of this post:

At first the anti-cigarette campaign, which had close ties to the temperance movement, focused on restricting children's access.  By 1890, 26 states had passed laws forbidding cigarette sales to minors, but many children continued to smoke.  Led by Lucy Page Gaston, a former teacher from Illinois whose career as a social reformer began in the Woman's Christian Temperance Union, the anti-cigarette crusaders next insisted that complete prohibition was necessary to protect the youth of America.  Between 1893 and 1921, 14 states and one territory (Oklahoma) enacted laws banning the sale of cigarettes, and in some cases possession as well.

Upholding Tennessee's ban in 1898, the state Supreme Court declared that cigarettes "are wholly noxious and deleterious to health. Their use is always harmful; never beneficial. They possess no virtue, but are inherently bad, bad only. They find no true commendation for merit or usefulness in any sphere. On the contrary, they are widely condemned as pernicious altogether. Beyond any question, their every tendency is toward the impairment of physical health and mental vigor."

In contrast to contemporary anti-smoking activists, who talk almost exclusively about the habit's effect on the body, early critics of the cigarette were just as concerned about its impact on the mind.  In the 1904 edition of Our Bodies and How We Live, an elementary school textbook, Albert F. Blaisdell warned: "The cells of the brain may become poisoned from tobacco.  The ideas may lack clearness of outline.  The will power may be weakened, and it may be an effort to do the routine duties of life…. The memory may also be impaired."

Blaisdell reported that "the honors of the great schools, academies, and colleges are very largely taken by the abstainers from tobacco," adding, "The reason for this is plain.  The mind of the habitual user of tobacco is apt to lose its capacity for study or successful effort.  This is especially true of boys and young men.  The growth and development of the brain having been once retarded, the youthful user of tobacco has established a permanent drawback which may hamper him all his life.  The keenness of his mental perception may be dulled and his ability to seize and hold an abstract thought may be impaired."

In the 1908 textbook The Human Body and Health, biologist Alvin Davison agreed that tobacco "prevents the brain cells from developing to their full extent and results in a slow and dull mind." He added, "At Harvard University during fifty years no habitual user of tobacco ever graduated at the head of his class."

These themes were taken up by prominent, widely admired Americans who were troubled by a cluster of traits that would later be associated with marijuana.  "No boy or man can expect to succeed in this world to a high position and continue the use of cigarettes," Philadelphia Athletics Manager Connie Mack wrote in 1913.  Biologist David Starr Jordan, the first president of Stanford University, concurred. "The boy who smokes cigarettes need not be anxious about his future," he said. "He has none."...

In the decades that followed, the cigarette's reputation underwent a complete reversal. Far from sabotaging intellectual achievement and economic productivity, it was seen as facilitating them through the stimulating action of nicotine.  But the dull, listless underachievers described by Ford and Edison reappeared in the 1960s, smoking something else.

Testifying before Congress in 1970, Harvard psychiatrist Dana Farnsworth noted that scientists had come up with a name for the condition that prevented marijuana users from reaching their potential. "I am very much concerned about what has come to be called the 'amotivational syndrome,'" Farnsworth said. ...

A decade and a half later, Robert DuPont declared that "millions of young people are living as shadows of themselves, empty shells of what they could have been and would have been without pot."  In 1989, his first year as the nation's first official "drug czar," Bill Bennett explained how smoking pot affects young people: "It means they don't study.  It causes what is called 'amotivational syndrome,' where they are just not motivated to get up and go to work."

It is plausible, of course, that smoking a lot of pot in high school might interfere with academic performance, just as heavy drinking might. But Farnsworth, DuPont, and Bennett are describing something more than that: a long-lasting impairment of the will that prevents cannabis consumers from being all that they can be....

Despite its continuing appeal as a propaganda theme, the idea that smoking pot makes people unproductive has never been substantiated.  In their 1997 book Marijuana Myths, Marijuana Facts, the sociologist Lynn Zimmer and the pharmacologist John P. Morgan examined the evidence and concluded: "There is nothing in these data to suggest that marijuana reduces people's motivation to work, their employability, or their capacity to earn wages.  Studies have consistently found that marijuana users earn wages similar to or higher than nonusers."

A 1999 report from the National Academy of Sciences noted that amotivational syndrome "is not a medical diagnosis, but it has been used to describe young people who drop out of social activities and show little interest in school, work, or other goal‑directed activity.  When heavy marijuana use accompanies these symptoms, the drug is often cited as the cause, but there are no convincing data to demonstrate a causal relationship between marijuana smoking and these behavioral characteristics."...

Like the symptoms of cigarette use that worried Ford and Edison, the symptoms of marijuana use are often hard to distinguish from the symptoms of adolescence. Peggy Mann's 1985 book Marijuana Alert, which Nancy "Just Say No" Reagan described in the foreword as "a true story about a drug that is taking America captive," is full of anecdotes about sweet, obedient, courteous, hard-working kids transformed by marijuana into rebellious, lazy, moody, insolent, bored, apathetic, sexually promiscuous monsters. "It was very easy for parents to blame marijuana for all the problems that their children were having, rather than to accept any responsibility," observes Harvard psychiatrist Lester Grinspoon, a leading authority on marijuana. "It became a very convenient way of dealing with and understanding various kinds of problems."...

Current fears about marijuana and other illegal drugs, like fears about cigarettes at the beginning of the last century, reflect the sort of worries that reappear in every generation. Parents want their children to be smart, to do well in school, to respect authority, and to become productive, responsible adults.  The dull, lazy, rebellious, and possibly criminal teenager―the cigarette fiend or pothead — is every parent's nightmare. Adults who have no children of their own worry that other people's kids will become tomorrow's parasites or predators, bringing decline and disorder.

Despite all the alarm that drug scares seem to generate, projecting these fears onto physical objects can be reassuring: Just keep the kids away from tobacco or marijuana (or alcohol or MDMA), we are implicitly told, and they will turn out OK. As symbols of all the things that might go wrong on the path from birth to maturity, drugs offer what every adult confronted by a troublesome teenager longs for: the illusion of control.

A few prior related posts:

February 23, 2015 in History of Alcohol Prohibition and Temperance Movements, History of Marijuana Laws in the United States, Medical community perspectives, Who decides | Permalink | Comments (0)